IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 21, 2014 Session
CHANNIN S. HUGHES v. NORMAN T. HUGHES
Direct Appeal from the Chancery Court for Hickman County
No. 11-CV-4368 Robbie T. Beal, Judge
No. M2013-01558-COA-R3-CV - Filed December 16, 2014
This case involves a child custody dispute between two parents in the midst of a divorce
proceeding with an unusual procedural history. After considering all the evidence presented
during the divorce trial, the trial judge orally ruled that the mother would be designated the
primary residential parent. About two weeks later, prior to the entry of any written order, the
father filed a motion to reopen the proof or, in the alternative, to reconsider the ruling,
seeking to present additional evidence about facts that occurred after the final hearing. The
trial court denied the motion but instructed the father to present the additional facts via a
petition to modify. The father then filed a petition to modify the primary residential parent
designation. After an evidentiary hearing, the trial judge dismissed the father’s petition to
modify, finding that the facts presented did not “amount to a change of circumstance so great
as to remove custody from the Mother.” Thereafter, the trial court entered the final decree
of divorce and parenting plan from the divorce trial. Father timely filed separate notices of
appeal from these orders. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
B RANDON O. G IBSON, J., delivered the opinion of the Court, in which F RANK G. C LEMENT,
J R., P.J., M.S., and A NDY D. B ENNETT, J., joined.
Douglas Thompson Bates, IV, Centerville, Tennessee, for the appellant, Norman T. Hughes
Kenneth K. Crites, Centerville, Tennessee, for the appellee, Channin S. Hughes
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Channin S. Hughes (“Mother”) and Norman T. Hughes (“Father”) were married in
November 2008. Mother had two daughters from a prior relationship, and Mother and Father
also had two daughters during their brief marriage – one born in April 2009 and another born
in July 2010. Mother and Father separated in February 2011, and Mother filed a complaint
for divorce in the chancery court of Hickman County. She sought to be named primary
residential parent of their two children, who were both under the age of two. The parties
informally attempted reconciliation, but the divorce case remained pending. In July 2011,
Father moved to Montana for a lucrative job opportunity.
On August 19, 2011, Mother filed a petition for an order of protection against Father,
alleging that he was placed in a mental facility in Montana on August 18 after he threatened
to commit suicide. Mother claimed that she feared for her safety because Father had been
released and was on his way to Tennessee, and he sent her a text message stating that it was
all her fault. Thereafter, the parties agreed that Father would be permitted visitation with the
children at his parents’ home. Following a hearing, the chancery court entered an order of
protection finding that Father “[d]id the things listed in the Petition.” The court found
credible evidence that Father had abused or threatened to abuse Mother and posed a threat
to her. The order required Father to “stay away” from Mother and have a mental evaluation.
However, pending further hearings, the order provided that the children would primarily
reside with Father and have visits with Mother every other weekend. Father’s mother was
to meet Mother to exchange the children. The order prohibited the parties from exercising
parenting time in the presence of members of the opposite sex.
Father subsequently filed a counter-complaint for divorce, alleging that Mother
physically and verbally abused him during the marriage. He sought to be named primary
residential parent of the parties’ two young children. On October 25, 2011, the trial court
held a hearing to consider a pendente lite parenting schedule. The court entered a written
order on November 4, 2011, providing that Father would continue to serve as primary
residential parent, and Mother would have parenting time every other weekend. The order
stated that the order of protection would remain in effect, and neither parent was permitted
to exercise parenting time around unrelated members of the opposite sex.
On February 6, 2012, the State of Tennessee filed a petition, on Father’s behalf, to set
Mother’s child support obligation. The proceedings then became more contentious. On
February 28, 2012, Mother filed a motion for a temporary restraining order and extraordinary
relief, asking the court to immediately transfer custody of the children to her. As grounds
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for such relief, Mother claimed that Father failed to produce the children for her every other
weekend visitation twice during the month of February and concealed the children from her.
Mother also claimed that Father came within 100 feet of her at a fast food restaurant and
threatened the life of her companion, Billy Gaddis. Mother alleged that Father was arrested
for violating the order of protection and that a sheriff’s deputy forcibly entered Father’s home
to apprehend him while serving the arrest warrant. She also claimed that Father threatened
law enforcement officials. In short, she claimed that Father demonstrated erratic and
dangerous behavior as well as mental instability that would justify transferring custody to
her.
The trial court held a hearing on March 14, 2012, and heard testimony from several
witnesses, including Mother, Father, two sheriff’s deputies, and a caseworker from the
Tennessee Department of Children’s Services (“DCS”).1 The record before us does not
contain a transcript from the hearing, but the trial court’s written order, entered April 17,
2012, found “evidence to support that the Court’s previous orders have not been followed
with regard to the minor children[.]” The court found “no evidence that there has been any
harm to the welfare of the children; however [Father] has exercised poor judgment that could
have resulted in harm to the minor children.” Accordingly, the trial court immediately
transferred temporary custody of the children to Mother pending the final divorce hearing.
The court extended the order of protection. Father was allowed parenting time with the
children every other weekend, but only at the home of his parents, who would monitor the
visits. In addition, the order provided that the children could have no extended contact with
unrelated members of the opposite sex, and it specifically stated that “the children shall not
be placed in contact with Billy Gaddis.”
The divorce trial was held on November 15, 2012.2 By the time of trial, the children
were ages two and three. The trial court heard testimony from Mother, Mother’s mother,
Father, a sheriff’s deputy, and a private investigator. The sheriff’s deputy testified that he
went to Father’s residence to serve an arrest warrant in February 2012, but Father refused to
answer the door, so the officer tore down the door and forcibly entered. The two minor
children were present at the home. The deputy testified that he had to forcibly arrest Father,
who was irate because he was arrested in front of the children.
At the time of trial, Father was living near Nashville. He testified that he was the
primary caregiver for the children during the marriage and mostly responsible for changing
1
Judge Timothy Easter presided over the trial court proceedings prior to this point. Beginning with
this hearing, Judge Robbie Beal presided over the proceedings.
2
The parties stipulated as to the separation of property and debt, and neither requested alimony.
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the children’s clothes and diapers and feeding them. Father testified that Mother was always
on the computer looking at social networking sites or playing games. Father testified that the
children cry and throw fits when they have to return to Mother. He claimed that he should
be named primary residential parent because of his ethics and morals and because he takes
better care of the children. He claimed that Mother’s family was highly unstable and often
involved in criminal activity.
Father testified that he went to a mental health facility in the past because Mother’s
“excessive abusiveness” caused him to have low self-esteem. He conceded that he “needed
some help at that particular time.” Father testified that he was diagnosed with transient
depression and treated with medication, but his doctor later determined he no longer needed
it. Father denied that he was suicidal in Montana but admitted that he left a note with one
of his co-workers and recorded a greeting on his voice mailbox that would cause a reasonable
person to become concerned.
Father acknowledged that he withheld the children from Mother during the two
weekends at issue in February 2012. He testified that the children were very ill with RSV
during the first weekend, and the second weekend, he did not send them because one of the
children stated that Mother’s boyfriend, Mr. Gaddis, touched her inappropriately. Father
took the child to a doctor, and the matter was investigated by DCS but deemed unfounded.
Father also described the incident involving him and Mr. Gaddis at the fast food restaurant.
He claimed Mr. Gaddis was in the parking lot yelling obscenities as Father and the children
were waiting at the drive-thru, so he simply revved his engine to move away from him as
quickly as possible.
Father had a felony conviction for aggravated assault from 1995. In addition, during
the marriage, the sheriff’s department and police department were called to the parties’
residence on numerous occasions. Father pled guilty to a charge of domestic assault on
Mother. He testified that Mother was physically abusive to him during the altercation that
led to the charge, but she promised to stay in the relationship if he pled guilty. Father
admitted calling the sheriff’s department and leaving an angry voice message during the
divorce proceeding because, he claimed, no one responded to his report that Mother was
allowing Mr. Gaddis to be in contact with the children. The recording of the message was
introduced at trial, and it is filled with expletives and threats to sue the sheriff and various
employees of the department. He also contacted Mother’s employer and stated that Mother
was involved with someone who uses drugs. Father testified that Mr. Gaddis sold drugs and
had a criminal record for simple possession, theft, and contributing to the delinquency of a
minor.
Mother testified that she never should have married Father. She described incidents
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of “heated disagreements and temper tantrums” between Father and her even prior to the
marriage. The sheriff’s department was called to the home on numerous occasions prior to
and during the marriage. On one occasion when Father was angry, he used an ax to demolish
a canoe he built, and on another occasion, he took all of the furniture out of the house.
Mother described another incident, during the divorce proceeding, when Father “chased” her
vehicle while driving his vehicle and simultaneously recording her with a video camera. The
children were in the vehicle with Father during this incident. Mother testified that she had
been investigated by DCS “many times” as a result of complaints by Father and his family
members. Mother admitted that several of her family members had criminal records but said
she did not have any charges herself. When asked to describe Father as a parent, Mother
said, “He’s good to [the children].” She acknowledged that the children love Father and said
she wants the children to maintain a meaningful relationship with him. Mother said her “only
concern” was that Father would do something irrational or start an argument with her in front
of the children if the order of protection was dismissed. Mother’s mother similarly testified
that she had seen Father “in a rage” in the past, such as the incident with the ax, but she
testified that he is “fine” with the children.
Mother claimed that she was the primary caregiver for the children and that they were
the priority in her life. Mother admitted she had engaged in a romantic relationship with
Billy Gaddis but claimed that they had since become “just friends.” During cross-
examination, however, she testified that they were still dating and that they had simply
“slowed down” their relationship. Mother was asked about Mr. Gaddis’s criminal record,
and she replied, “All that I know is he had a Misdemeanor when he was like 19. He got
caught drinking under the age of 21. I don’t know of anything else.” However, when shown
Mr. Gaddis’s arrest record, Mother admitted she knew that Mr. Gaddis was arrested a few
weeks before trial for possession of marijuana. Mother was asked whether she had complied
with the trial court’s April 2012 order stating that “the children shall not be placed in contact
with Billy Gaddis,” and Mother insisted that she had. Counsel for Father asked Mother to
look the trial judge in the eye and answer the question again, and Mother again said the
children had not been in contact with Mr. Gaddis.
Father presented the testimony of a private investigator to contradict Mother’s
testimony. The investigator testified that he conducted mobile surveillance of the parties’
custody exchange on Sunday, July 1, 2012. After Mother left the exchange with the children,
she drove a short distance and met Mr. Gaddis in his vehicle. Mother, the children, and Mr.
Gaddis then proceeded to Mother’s house, where they entered the home. The only other
visitation exchange the investigator observed was on Sunday, August 12, 2012, and he again
observed Mr. Gaddis at Mother’s residence after she picked up the children. Mother, Mr.
Gaddis, the children, and other family members were having a barbecue outside, and Mr.
Gaddis was “mingling” with the family. The investigator saw Mr. Gaddis’s vehicle at
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Mother’s home on two other occasions on weekdays when Mother had parenting time with
the children. On another occasion, the investigator observed Mr. Gaddis exiting the dead end
road from Mother’s home.
After the private investigator testified, Mother returned to the stand. She testified that
Mr. Gaddis was routinely around her older two daughters, but she claimed that he “stays
away” from the younger two daughters. She insisted that Mr. Gaddis was not “by” the
younger daughters at the barbecue and that he had never been “in close quarters” in the house
with them. She also testified that Mr. Gaddis had not spent the night at her home. Mother
said she did not feel that she lied to the judge because Mr. Gaddis was not in “direct” contact
with the younger children.
At the conclusion of the testimony, the trial judge addressed Mother and said that she
clearly lied to him. The trial judge noted that he had never met Mr. Gaddis and said that he
“may be a fine man.” The problem, the judge said, was that Mother “lied to [him] as sure
as the world,” so the judge questioned whether he could believe anything Mother said or trust
her in the future. The judge said that Mother “put [her] interests over that of [her] kids by
violating my Court Order” and “found [her] relationship with [Mr. Gaddis] more important
than making sure [her] kids stay with [her].” However, the trial judge said he did not believe
“every word” of Father’s testimony either and found that some of his answers were not
believable.
The trial judge proceeded to discuss each of the statutory best interest factors that
guide a trial court’s decision when designating a primary residential parent. The judge found
that both parents love the children and have strong emotional ties to them. The judge
concluded that neither party could be considered the primary caregiver for the children
during the marriage, as both provided for the children and “took up the slack of the other
party.” He found that Father was in a better financial position to care for the children but that
Mother would be able to provide for the children’s basic necessities, so consideration of their
finances did not “carry much weight.” The court also found that Father had more stable
family support. However, the court found that Father’s mental health was a “significant” and
“unresolved” issue, as he had “temper issues” and “issues with regard to erratic behavior.”
The court found that Father, “on occasion when pressed acts in a very erratic unpredictable
way and that’s a problem.” On the other hand, the court also found that Mother loves
“drama” and “seems to thrive on it,” and the court believed that Mother did things to make
the parties’ relationship more dramatic. The court found that Mother and Father were
“incapable of working together” and that “both parties have done everything they can to
inflame the other.”
The court also discussed the character of the people frequenting Mother’s home. The
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court found that Mr. Gaddis and some of Mother’s family members were “not people that the
Court would appreciate necessarily being around the children to a huge extent,” but the court
noted that Mr. Gaddis’s criminal record was not shocking and said that it did not lead the
court to believe that Mother was not adequately protecting the children. Mainly, the court
was concerned that Mother seemed to be “oblivious” to the fact that her behavior would
impact the court’s decision, which demonstrated “lack of judgment in caring for her child.”
In summary, the court described its dilemma and ultimate decision as follows:
All of that to say, really the question boils down to since the Court is
really unable to determine to any significant affect [sic] who the primary
parent has been. I[t] comes down to does the Court trust the mother’s judgment
because of the people who she associates with or because of her behavior in
Court today or do I trust the father’s judgment because of his part [sic]
behavior, that certainly can be considered erratic?
In this particular case the Court believes that the mother should be
awarded primary parenting responsibilities for these children. I believe it’s
more appropriate in this case. She did lie to the Court but I don't believe just
based on the fact that you lied does that mean that you ultimately should lose
your consideration for parenting responsibilities, certainly not. Does it affect
her credibility, yes. But should it based on that should it forfeit her standing to
be the more appropriate person to be the primary parent? Because the Court,
quite frankly, believe[s] it could have found prior to any of that testimony the
father’s behavior in the relationship was of more concern than the mother’s
behavior. The Court is going to stay with that and going to grant her primary
parenting responsibilities.3
The judge announced that Father would have parenting time with the children every other
weekend and for the entire summer break with the exception of three weeks. The judge
found that Father’s concerns about Mr. Gaddis were “legitimate” and ruled that the children
were to have “no contact” with him. The court declined to extend the order of protection.
Two weeks after the divorce trial concluded, but prior to the entry of a written order,
Father filed a “Motion to Reopen Proof, or in the alternative to Reconsider.” The motion
alleged that Mr. Gaddis continued to have contact with the children after the divorce trial and
was probably staying at the home overnight. The trial court held a hearing on December 12,
2012, and subsequently entered a written order denying Father’s motion to reopen the proof
3
The court explained that it considered but rejected a joint parenting arrangement because of the
distance between Mother’s home in Centerville and Father’s home near Nashville and also because of the
“toxic” relationship between the parents.
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or reconsider its ruling. However, the court’s written order stated that the court was “not
immune to the allegations” and that it would retain jurisdiction in the matter to permit Father
to file a petition to modify and/or a petition for contempt. On December 20, 2012, Father
filed a petition for criminal contempt and petition to modify the designation of primary
residential parent. According to the petition, after the divorce trial ended on November 15,
2012, Mother continued to violate the no-contact order by having Mr. Gaddis stay overnight
at her residence on November 28 and 29 when she had custody of the children. Father
alleged that these facts demonstrated a substantial and material change in circumstances and
asked the court to conduct a best interest analysis to determine whether he should be
designated primary residential parent. He also asked the court to find Mother in contempt
of its order prohibiting contact between Mr. Gaddis and the children. Mother filed a
response to Father’s petition to modify and admitted that Mr. Gaddis had contact with the
children on the aforementioned dates. She claimed that such contact was the result of her
babysitter contracting the flu and leaving her with limited options for childcare.
On February 26, 2013, the trial court held an evidentiary hearing on the petition to
modify. Three months had elapsed since the final divorce hearing on November 15, 2012;
however, the trial court had not yet entered a final decree of divorce or parenting plan.4 The
private investigator testified that he conducted additional surveillance of Mother’s residence
after the divorce hearing but was concerned that Mr. Gaddis was hiding his vehicle
somewhere on Mother’s property. He hired a pilot and “took to the air,” where he observed
Mr. Gaddis’s truck parked at the very back of the property, hidden between two sheds. He
observed the vehicle in this location on November 29 and November 30, prior to 7:30 a.m.
each morning.
Mother admitted that Mr. Gaddis had been in contact with the children and was
helping her move after a tree fell on her house. She testified that Mr. Gaddis stays with her
during the weekends when the children visit Father and said that her older children love him
and call him “daddy.” Mother and Father also presented additional evidence about numerous
issues that were discussed during the original divorce hearing, such as Father’s suicide threat
in Montana and his 1995 conviction for aggravated assault, in addition to other events that
occurred during the marriage.
At the conclusion of the testimony, the trial judge reiterated its previous sentiment that
the court did not “have huge issues with Mr. Gaddis” and was more concerned with Mother’s
behavior. The court described the dilemma it originally faced during the divorce hearing,
4
The trial judge had directed counsel for Mother to prepare the order. However, the entry of the
order was apparently delayed because the order proposed by counsel failed to include a parenting plan or a
specific amount for child support.
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saying, “at that point you have got the father’s judgment issues, and then you have got the
mother who is willing to sacrifice what supposedly should be the most precious things in her
life for someone who, you know, is just another man.” The court said it was basically “posed
with the problem again” and “still similarly situated as it was the last time.” The judge
continued,
[s]o the shoe comes back down to the exact same issue that the Court had to
rule upon in November. Is this issue so important that it weighs the factors so
heavily against the mother that in essence she should lose the parenting, her
primary parenting responsibilities. And the question is whether this Order is
so important to the Court that it should relate so highly that it would cause the
Court to reconsider the primary parenting responsibilities, and the answer
is no.
The judge also said, “I don’t believe that there’s been a material change of circumstances
significant for the Court to find that a new Parenting Plan should be entered.” The trial judge
did find Mother in contempt for violating its orders and sentenced her to ten days in jail, to
be suspended after forty-eight hours served.
The trial court entered a written order dismissing Father’s petition to modify on June
5, 2013. On June 21, 2013, the trial court entered a final decree of divorce and parenting
plan from the November 15, 2012 divorce trial. Father filed separate notices of appeal from
the June 5 and June 21 orders.
II. I SSUES P RESENTED
Father presents the following issues, which we have slightly reworded, for review on
appeal:
1. Whether the trial court erred in designating Mother primary residential
parent at the divorce trial; and
2. Whether the trial court erred in failing to modify its oral ruling from the
divorce trial after considering the petition to modify.
For the following reasons, we affirm the decision of the chancery court and remand for
further proceedings.
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III. S TANDARD OF R EVIEW
The Tennessee Supreme Court recently described the standard of review that applies
when an appellate court reviews a trial court’s decision on a parenting arrangement:
In a non-jury case such as this one, appellate courts review the trial court’s
factual findings de novo upon the record, accompanied by a presumption of the
correctness of the findings, unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013). We review the trial court’s resolution of questions of
law de novo, with no presumption of correctness. Armbrister v. Armbrister,
414 S.W.3d at 692.
Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, trial judges, who
have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate
judges. Armbrister v. Armbrister, 414 S.W.3d at 693. Determining the details
of parenting plans is “peculiarly within the broad discretion of the trial judge.”
Armbrister v. Armbrister, 414 S.W.3d at 693 (quoting Edwards v. Edwards,
501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is not the function of
appellate courts to tweak a [residential parenting schedule] in the hopes of
achieving a more reasonable result than the trial court.” Armbrister v.
Armbrister, 414 S.W.3d at 693 (quoting Eldridge v. Eldridge, 42 S.W.3d 82,
88 (Tenn. 2001)).
A trial court’s decision regarding the details of a residential parenting
schedule should not be reversed absent an abuse of discretion. Armbrister v.
Armbrister, 414 S.W.3d at 693 (citing Eldridge v. Eldridge, 42 S.W.3d at 88).
A trial court abuses its discretion when it applies an incorrect legal standard,
reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to
the complaining party. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)
(citing Konvalinka v. Chattanooga–Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008)). A trial court abuses its discretion in establishing a
residential parenting schedule “only when the trial court’s ruling falls outside
the spectrum of rulings that might reasonably result from an application of the
correct legal standards to the evidence found in the record.” Armbrister v.
Armbrister, 414 S.W.3d at 693 (quoting Eldridge v. Eldridge, 42 S.W.3d at
88).
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Kelly v. Kelly, – S.W.3d. –, 2014 WL 4437671, at *5-6 (Tenn. Sept. 10, 2014).
IV. D ISCUSSION
A. The Trial Court’s Initial Decision
First, we will consider Father’s argument that the trial court erred in designating
Mother as primary residential parent at the conclusion of the divorce trial. When choosing
which parent to designate as the primary residential parent for a child, “the court must
conduct a ‘comparative fitness’ analysis, requiring the court to determine which of the
available parents would be comparatively more fit than the other.” Chaffin v. Ellis, 211
S.W.3d 264, 286 (Tenn. Ct. App. 2006) (quoting Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.
1983)). “The overarching ‘standard by which courts determine and allocate the parties’
parental responsibilities’ after divorce is the ‘best interests of the child.’” Kelly, – S.W.3d
–, 2014 WL 4437671, at *9 (quoting Tenn. Code Ann. § 36-6-401(a)). In making this
determination, the trial court is required to consider numerous statutory factors set forth in
Tennessee Code Annotated section 36-6-106(a), among others. See id.
In the case before us, the trial judge described this is a “difficult case” to decide
because both parents were “similarly disposed” in their ability to care for the children, but
at the same time, both parents also demonstrated poor judgment. Mother obviously violated
the court’s orders and then lied about it in court. Father engaged in concerning and erratic
behavior on numerous occasions, which the trial court found demonstrated unresolved mental
health issues and an inability to control his temper. When announcing his decision, the trial
judge specifically discussed his concerns regarding Father’s past conviction for felony
aggravated assault, his guilty plea on the domestic violence charge, his suicide threat in
Montana, his demolition of the canoe, his inappropriate call to the sheriff’s department, his
inappropriate postings on Facebook, his decision to drive past Mother while trying to
videotape her, and the fact that the sheriff’s department was required to enter his residence
by force with the children present. The trial judge also discussed each of the statutory factors
and clearly articulated its findings as to each. The court concluded that the best interest factor
regarding each parent’s mental health weighed “heavily in [Mother’s] favor,” and the factor
regarding physical abuse also weighed in her favor. The court found that Mother’s
associations demonstrated a lack of judgment but that they were not harmful to the children.
The judge was clearly concerned by Mother’s credibility but ultimately decided that her
credibility issues did not “forfeit her standing to be the more appropriate person to be the
primary parent.” The trial judge said at the conclusion of the divorce trial, “I did what I
thought was right for these kids today notwithstanding [Mother’s] behavior.” Given the trial
court’s thorough analysis of the evidence, and its unique ability to observe Mother and
Father’s testimony and gauge their credibility, we cannot say that the trial court abused its
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discretion in designating Mother as the primary residential parent. As we noted above, a trial
court abuses its discretion in establishing a residential parenting schedule only when the trial
court’s ruling falls outside the spectrum of rulings that might reasonably result from an
application of the correct legal standards to the evidence found in the record. See Kelly, –
S.W.3d. –, 2014 WL 4437671, at *6. The trial court’s parenting arrangement in this case is
well within the range of possible reasonable results.
B. The Trial Court’s Refusal to Modify its Initial Decision
“Once a permanent parenting plan has been incorporated in a final divorce decree, the
parties are required to comply with it unless and until it is modified as permitted by law.”
Armbrister, 414 S.W.3d at 697 (citing Tenn. Code Ann. § 36-6-405). “A valid custody order
or residential placement schedule, once entered by the court, is res judicata as to the facts in
existence or reasonably foreseeable when the decision was made.” Birdwell v. Harris, No.
M2006-01919-COA-R3-JV, 2007 WL 4523119, at *3 (Tenn. Ct. App. Dec. 20, 2007)
(citations omitted). Consequently, when assessing a petition to modify a permanent
parenting plan, the court must first determine if a material change in circumstances has
occurred and then apply the statutory “best interest” factors of section 36-6-106(a) and other
sections to determine how, if at all, to modify the residential parenting schedule. Armbrister,
414 S.W.3d at 697-98.
On appeal, Father argues that the trial court erred in refusing to modify its oral ruling
from the divorce trial after considering his petition to modify. He asserts that he proved a
material change in circumstance occurred after the divorce hearing. However, we find that
the material change in circumstance standard for modifying a parenting plan was
inapplicable. At the point in time when Father filed his petition to modify, the trial judge had
orally announced his decision designating a primary residential parent, but no order was
entered to that effect, and no parenting plan was in existence. In effect, Father was seeking
to modify an order that did not exist. As noted above, a custody order or residential
placement schedule is effective for purposes of res judicata “once entered by the court,”
Duke v. Duke, M2013-00624-COA-R3-CV, 2014 WL 4966902, at *27 (Tenn. Ct. App. Oct.
3, 2014), perm. app. pending (Dec. 3, 2014), when the custody decision is “final.” Dickerson
v. Cantrell, No. E2013-01732-COA-R3-CV, 2014 WL 2086636, at *5 (Tenn. Ct. App. May
16, 2014) (no perm. app. filed). In this case, however, the trial court considered and denied
a petition to modify when no custody order or parenting plan existed.
This Court has previously held that a trial court committed reversible error by
applying the standard for modifying a custody order in the context of a custody dispute when
there was no final custody order in existence, and the parties were only operating under a
temporary order. Dillard v. Jenkins, No. E2007-00196-COA-R3-CV, 2007 WL 2710017,
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at *3-4 (Tenn. Ct. App. Sept. 18, 2007). We said “there is a significant difference between
the analysis employed by a trial court when making an initial custody determination or
considering a petition for change of custody, and the differing analysis could easily produce
a different result by the trial court.” Id. at *3. Accordingly, we remanded the case for the
trial court to consider the custody issue using the proper legal standard. Id. at *4.
Considering the unique facts of this case, however, we do not find reversible error by
the trial court. When ruling on Father’s petition to modify, the trial court found that
Mother’s continued violation of the court order did not “amount to a change of circumstance
so great as to remove custody from the Mother.” After the trial judge announced his ruling
at the end of the hearing, counsel for Father questioned whether Father was prejudiced by the
fact that the trial court required him to file a petition to modify rather than proceeding with
his motion to reopen the proof. Counsel pointed out that “a much different standard” would
apply if “the analysis [was] still the best interest” in the context of the original divorce
hearing. The trial judge acknowledged that there was “some room for confusion” due to the
awkward procedural posture of the case, and the judge said that he considered a petition to
modify to be “procedurally . . . more appropriate.” However, the judge said he ultimately
concluded that the post-trial evidence presented was not “significant enough” to justify re-
opening the proof, nor did it demonstrate a material change in circumstance. In other words,
the trial judge expressed his opinion that he had “covered both procedures.” He denied the
motion to reopen proof and “also” found no material change in circumstance. Accordingly,
we find that the result would have been the same whether the trial judge treated the motion
as one to reopen the proof or as a petition to modify a custody order.5
In fact, the trial court appeared to engage in a best interest analysis through most of
its oral ruling at the conclusion of the modification hearing. The trial judge recognized that
it was faced with the same dilemma from the divorce hearing – comparing Mother’s
dishonesty and violation of court orders with Father’s erratic behavior and anger issues. The
court said it was “posed with the problem again” and “still similarly situated as it was the last
time,” considering “the exact same issue that the Court had to rule upon in November.” The
judge questioned whether the continued issue involving Mr. Gaddis was “so important that
it weighs the factors so heavily against the mother that in essence she should lose the
parenting, her primary parenting responsibilities,” and the court found that it was not.
Accordingly, we conclude that the trial court’s use of the standard applicable to modification
cases was harmless error under the unique facts of this case.
5
This Court reviews a trial court’s decision on a motion to reopen the proof for abuse of discretion.
Thompson v. Travelers Indem. Co., No. M2004-01913-WC-R3-CV, 2005 WL 2276891, at *5 (Tenn. Workers
Comp. Panel Sept. 20, 2005); Gilbert v. Birdwell, No. M2009-01743-COA-R3-CV, 2010 WL 1254368, at
*3 (Tenn. Ct. App. Mar. 31, 2010), perm. app. denied (Tenn. Sept. 23, 2010).
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V. C ONCLUSION
For the aforementioned reasons, the decision of the chancery court is hereby affirmed.
Costs of this appeal are taxed to the appellant, Norman T. Hughes, for which execution may
issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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